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RCMP focus on criminal charges could let Wright off hook

OTTAWA – Nigel Wright could avoid facing legal consequences for his central role in the Senate expenses scandal if the RCMP remains focused strictly on possible criminal offences, parliamentary law experts say.

They believe the surest route for prosecutors against Prime Minister Stephen Harper’s former chief of staff is an obscure section of the Parliament of Canada Act.

But, so far at least, the Mounties do not appear to be considering it.

Documents filed in court show the RCMP is intent on proving Wright, along with Sen. Mike Duffy, is guilty of bribery, fraud and breach of trust, as spelled out in the Criminal Code. Neither Wright nor Duffy have been charged with any offence.

Wright personally gave Duffy $90,000 so that the disgraced senator could pay back disputed living expense claims.

Email trails obtained by the RCMP describe a deal whereby Duffy publicly announced he’d repaid the Senate while the Prime Minister’s Office ensured the senator was fully reimbursed, that a Senate committee report on his expenses was softened and that an independent audit raised no questions as to Duffy’s eligibility to sit as a senator for P.E.I., although he lived primarily in Ottawa.

When court documents containing the emails were released publicly in November, Wright insisted his intentions were noble and that he did nothing to break the law.

“My intention was always to secure repayment of funds owed to taxpayers,” he said in a statement at the time. “I acted within the scope of my duties and remain confident that my actions were lawful.”

For Rob Walsh, former law clerk for the House of Commons, the Wright-Duffy transaction appears on its face to be a clear violation of Sec. 16 of the Parliament of Canada Act.

Walsh said he believes it would be easier to secure a conviction under the act than under any of the Criminal Code provisions cited thus far by the RCMP. Indeed, he doubts criminal charges could be made to stick in relation to the Wright-Duffy deal.

“The evidentiary burden I think is less (under the act) and, to that extent, it ought to be an easier task to prosecute,” Walsh said in an interview.

While criminal charges would require proof of intent to act corruptly, the act is more straightforward in stipulating that it’s illegal to give money to a senator or for a senator to take it.

“Under Sec. 16, it doesn’t matter where the money came from or why,” Walsh said.

Former Liberal MP Derek Lee, a lawyer and acknowledged expert on parliamentary procedure and law, agreed with that assessment.

“There’s all kinds of protections and obstacles in the Criminal Code … and it might be difficult to get a prosecutor to run with this,” Lee said in an interview.

By contrast, he said Sec. 16 of the Parliament of Canada Act is “simpler and more direct and it seems to pertain more, to fit better with the fact situation” of the Wright-Duffy deal.

The act specifies that no senator shall receive “any compensation, directly or indirectly,” for services rendered in relation to any bill, contract, controversy, accusation or other matter before the Senate, House of Commons or any parliamentary committee.

A senator who contravenes the section is “guilty of an offence and liable to a fine” of between $1,000 and $4,000.

The act further stipulates that it is an “indictable offence” to offer compensation to a senator, punishable by up to one year imprisonment and a fine of $500 to $2,000.

An RCMP spokeswoman declined to comment on why the Mounties have made no mention of the act in documents filed in court thus far.

It would appear that no one has ever been prosecuted under Sec. 16 of the act. No record of a prosecution could be found by the office of the Director of Public Prosecutions, who would be responsible for charges laid under the act, the Justice Department or the Library of Parliament.

Lee speculated that the absence of any precedents might account for the RCMP’s apparent reluctance to pursue charges under the act against Duffy and Wright.

“Nobody and their brother, except parliamentarians, would have much of an experience in dealing with the Parliament of Canada Act. They might even consider it off limits,” he said.

“No policeman, untrained specifically in this law, is going to go out on his own and break new ground … This isn’t a part of their tool kit.”

Walsh speculated that the Mounties may be holding Sec. 16 in reserve, intending to use it if they can’t ultimately make the case for charges under the Criminal Code.

The RCMP may also be citing the Criminal Code provisions for now, as it seeks court approval to access more evidence, because they are seen as being the most serious potential charges that could arise from the affair.

Still, Walsh said a charge under the Parliament of Canada Act would be no trifling matter.

“It’s not to be diminished by being described as a mere statutory offence … This is an indictable offence, there’s no two ways about that, and it has to be taken seriously.”

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RCMP focus on criminal charges could let Wright off hook

Geeze, this is an embarrassing argument. Walsh is wrong to say that ” it doesn’t matter where the money came from or why” or that it is illegal to give money to a senator. S.16 clearly states that it is illegal to give a senator compensation for:
“for services rendered or to be rendered to any person, either by the member or another person,

(a) in relation to any bill, proceeding, contract, claim, controversy, charge, accusation, arrest or other matter before the Senate or the House of Commons or a committee of either House; or

(b) for the purpose of influencing or attempting to influence any member of either House.”
Can anyone with a straight face claim that the amount that Wright paid to Duffy was for services rendered in connection with Duffy’s expense scandal or for the purpose of influencing him? Why the money was paid to Duffy matters, if it wasn’t for services described in (a) and (b), it wasn’t in violation of section 16 of the Parliament of Canada Act. If the RCMP isn’t pursuing this argument, it’s probably because it’s a pretty tenuous one.

IMO, he’s saying that “it doesn’t matter where the money came from or why” in response to the argument that nothing untoward occurred because Wright used his own money and no public funds were involved. He’s saying it’s still an inducement offered to a sitting parliamentarian, regardless of its source.

While I disagree with Bob that Walsh and Lee have made “embarassing” arguments, he is quite correct that they depend on how the *facts* of the Wright/Duffy quid pro quo are characterized.
The Walsh/Lee version seems to be “Here is $90k if you shut up about a matter before the Senate”. If that is accepted, they are correct that section 16 looks relevant.
Wright’s version is likely “The matter before the Senate is your debt to it of $90k. I will give you the money to pay your debt and the matter will no longer exist, so there will be nothing to talk about. You will get the money no matter what. I don’t care what you say or do provided the money I give you is used to refund taxpayers. At that point, however, my boss may care if you keep talking publicly, to the detriment of the party, about a matter that no longer exists.”
Wright has a strong argument if he can show those facts as there were no “services”. The problems with it are whether there was ever a threat to withhold the “gift” if Duffy didn’t cooperate (a) by paying back the Senate, or (b) did not promise future good behaviour. If counsel was involved (and there were three: Wright, Perrin, Payne) then the understanding, or explicit lack of understanding, is likely papered in some way. Also, if there was any crystallization of the government going to bat for Duffy with the Senate committee members or the independent audit, things get muddied. And, ust speculating, that might engage other legislation too.

I think you’ve missed my point. I agree with you on “claim, controversy”. It’s synonymous with my use of the term “matter”. Again, the Crown would have to show that Wright gave Duffy money in exchange for Duffy doing or not doing something, and I suspect there is paper that says “Because I want taxpayers to be kept whole I will give you the money irrespective of what you or do not do next.” I’m not sure that Wright’s argument on that basis (if he makes it) would hold up on a very technical reading of the law because he would be inducing Duffy to repay his debt. The practical danger of that argument is a judge saying: “you want me to convict a man for bribing a Senator to do the right thing?”

Um, Ricky…this article was written by a journalist, who consulted acknowledged legal experts with knowledge of relevant legislation. One of them happened to be a former Liberal MP. There are no partisan fingerprints on this article, let alone “Liberal” ones.

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